The Federal Rules of Civil Procedure establish that individuals and corporations may be served “following state law for serving a summons . . . in the state where the district court is located." Fed. R. Civ. P. 4(e)(1), (h)(1)(A). Thus, state rules determine how plaintiffs serve on defendants. When personal service of process cannot be accomplished, plaintiffs usually resort to alternate means to serve defendants as allowed by state law. For instance, under Michigan law, when service of process cannot be made as provided by the civil procedure rules, “the court may allow service of process to be made in any other manner reasonably calculated to give defendant actual notice of the proceedings and an opportunity to be heard.” M.C.R. 2.105(I). This Michigan rule is common to most U.S. states.
In McCluskey v. Belford High Sch., Case No. 2:09-14345, the United States District Court for the Eastern District of Michigan was to decide whether service of process through an e-mail was an alternate way to serve defendant according to M.C.R. 2.105(I).
The court held that an e-mail was not an appropriate service of process under Michigan law.
In McCluskey, plaintiffs alleged that defendants operated a fraudulent Internet scheme through various websites where they represented the existence of accredited and legitimate high schools, whose diplomas would be accepted by employers, professional associations, other schools, colleges and universities. Plaintiffs were adults who obtained diplomas through Defendant’s websites. Plaintiffs were unable to serve summons on defendants personally or by registered mail. Plaintiffs alleged that defendants listed addresses in Texas and California, but neither location had a physical office located there or an agent to accept service. Thus, plaintiffs filed a motion requesting the court to authorize service of process through (1) e-mail (they had some plaintiffs’ e-mail addresses); (2) by a posting at the county courthouse; and (3) by a posting on the Internet at “
www.belfordlawsuit.com,” according to M.C.R. 2.105(I).
The court held that plaintiffs’ proposed alternate forms of service were not reasonably calculated to give defendants actual notice of the proceedings and an opportunity to be heard. Regarding the courthouse postings, the court held that there was no evidence that defendants had physical presence in Michigan as to infer that these postings would give actual notice to defendants. Regarding the Internet postings, the court held that “is unlikely to provide actual notice to Defendants of the proceedings because Defendants may not be aware of the existence of the website created by Plaintiffs.” Lastly, the plaintiffs failed to prove that the e-mail addresses obtained were likely to give actual notice of the proceedings to defendants.
Unlike this Michigan district court, a New York district court in Snyder v. Energy Inc., 857 N.Y.S.2d 442 (2008), allowed service through e-mail. In Snyder, Defendant Corporation was not registered with the N.Y. secretary of State and the plaintiff was unable to find a place where the defendant corporation or its president could be physically served. Plaintiffs showed the court that they made reasonable effort to locate a current address to serve defendants to not avail. Yet, plaintiffs showed the court that they could reach the corporation’s president on the Internet. Plaintiffs had the president’s e-mail address and they sent an e-mail requesting a physical address to serve process, but their e-mails were unanswered. The court held that “[S]ervice by e-mail was reasonably calculated, under the circumstances, to apprise the corporation and the president of the action, and was an appropriate form of service.”
According to the two above decisions, the granting of a request of service of process through e-mail may depend on the facts of each case and the state court to decide it. E-mail as an alternate way to serve summons is still incipient, and many years may passed before this becomes a common practice